Dive Brief:

• The D.C. Circuit Court of Appeals on Tuesday upheld the U.S. EPA’s designation of two PFAS chemicals as hazardous substances under CERCLA. That decision refutes waste industry claims that the EPA overstepped its authority and unfairly exposed businesses to liability expenses.
• The National Waste & Recycling Association and other groups, including the U.S. Chamber of Commerce, sued the EPA in 2024 over the designations. NWRA and the other petitioners say the EPA didn’t offer enough time for public comment on the matter and conducted a flawed cost-benefit analysis on the designation, among other claims.
• The legal opinion, announced by a three-judge panel, affirms the EPA made a “reasoned decision” when designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act in 2024. The U.S. Chamber and NWRA have said they are considering next steps, but have not said whether they will appeal.

Dive Insight:

Although the EPA has made numerous PFAS-related decisions in recent years, the waste industry sees the CERCLA hazardous substance designation for the two per- and polyfluoroalkyl substances as having the most direct impact on operations. The waste industry has also benefitted in recent years from some PFAS management business opportunities.

NWRA considers waste operators as “passive receivers” that do not have control over PFAS-laden materials that enter their facilities, and believes the designation could lead to unintended consequences that might force landfills to reject PFAS-containing material, incur major costs for sorting or processing the material or face PFAS-related lawsuits. 

Petitioners also include the American Chemistry Council, American Fuel & Petrochemical Manufacturers, Associated General Contractors of America, the Recycled Materials Association, and American Forest & Paper Association.

Judges disagreed with that claim, saying the petitioners “have come forward with no evidence that those responsible for the presence of hazardous substances at a site have been unfairly saddled with liability or that the statute’s operation has hamstrung industry.” 

In an emailed statement, NWRA President and CEO Michael E. Hoffman said the association was “disappointed” by the decision. 

“While we support efforts to address PFAS contamination and protect public health and the environment, we remain concerned that this designation may create significant legal and financial uncertainty for passive receivers, including municipal solid waste landfills and other waste and recycling facilities that did not manufacture these chemicals but are responsible for managing materials generated throughout the economy.”

When NWRA, the U.S. Chamber and the other petitioners brought the case in 2024, they asked the judges to determine whether the EPA failed to provide “adequate notice and opportunity” to comment on the proposed rule and whether it offered an “adequate and reasonable explanation” for why it determined PFOA and PFOS should be designated as hazardous substances.

The CERCLA hazardous designation was established during the Biden administration, but the EPA under the Trump administration said it would defend the rulemaking.

In the ruling released on Tuesday, judges said the EPA offered numerous details as to why the two PFAS should be considered hazardous substances, noting that the agency spent pages of text describing possible health and developmental effects “including decreased infant birth weight and effects on fetuses during pregnancy; cardiovascular impacts like increased cholesterol in adolescents; increased liver enzymes, which can impact liver function; immunosuppression in adults and children” and other examples. 

Judges also decided that the EPA had provided enough time to solicit public comments on the proposed CERCLA designation. “Petitioners’ members are seasoned participants in the highly regulated area of chemical substances’ commercial uses,” the judges wrote. “They were provided ample notice and opportunity to be heard through the notice and comment rulemaking process.”

NWRA, the U.S. Chamber and the other petitioners also argued that the EPA offered a flawed cost-benefit analysis on the impacts of the designation, saying EPA miscalculated cleanup costs at sites on the Superfund’s National Priorities List, ignored cleanup costs at federal sites and “failed to consider the impact of the Designation on small businesses.” 

But judges said EPA’s analysis offered reasonable estimates for cleanup costs, and that an alternative cost model suggested by the U.S. Chamber of Commerce relied on outdated data and “discussions with industry rather than empirical data.” 

In an emailed statement, Daryl Joseffer, president of the U.S. Chamber Litigation Center, said the group “respectfully disagree[s]” with the court’s decision.

“EPA’s failure to consider costs and consequences, as required by law, produced a deeply flawed rule that is more likely to spawn unnecessary, costly litigation than to drive expeditious, effective cleanup focused on actual risk,” Joseffer wrote. “Local governments, landowners, and businesses will now likely have to divert resources to fighting prolonged litigation battles — resources that could be used for more productive purposes, including cleanup.” 

The judges’ decision does not change the wording or enforcement of the CERCLA hazardous substance designation for PFOS and PFOA, in part because that designation had never been suspended during the ongoing legal battle.

But waste industry groups are expected to continue seeking out additional protections against the possibility of liability issues under CERCLA. 

The EPA under the Biden administration had previously stated that the hazardous substance designation was meant to hold polluters accountable for cleaning up certain PFAS and does not intend to pursue enforcement at certain types of landfills. Yet industry groups like NWRA have said the wording is not specific enough to protect them from potential negative impacts.  

Taryn McKnight, vice president of product at Eurofins, an environmental testing company that offers PFAS-related testing services for a range of industries, said the EPA doesn’t have the authority to protect passive receivers from third-party claims. “Only Congress has that authority, and Congress has been debating for years whether to provide waivers to passive receivers,” she said. 

NWRA and other groups have been asking Congress for a CERCLA exemption since at least 2022 due to such liability concerns. Some lawmakers have proposed related bills in past years, but none have progressed so far.  

One of the latest moves is a proposed amendment to the fiscal year 2027 National Defense Authorization Act, proposed by Sen. Pete Ricketts of Nebraska. It calls for exempting certain “resource management entities” from CERCLA liability related to PFAS releases from entities such as solid waste management and wastewater facilities.

“With this decision now, with the courts denying the petitioners’ request to review or overturn this ruling, that does put the pressure on Congress to make a decision and potentially provide those waivers,” McKnight said.

In the meantime, Hoffman stated that NWRA will continue “to advocate for policies that ensure that those most responsible for introducing PFAS into commerce bear primary responsibility for addressing contamination, while protecting critical waste and recycling infrastructure that communities rely on every day.”